by Lilly Fowler and Myron Levin, FairWarning

Lead paint makers suffered a landmark defeat Monday when a state court judge in San Jose, Calif., ordered the industry to create a $1.1 billion fund to eliminate lead hazards to children in hundreds of thousands of homes in the state.

The decision broke the industry’s perfect record of defending suits by public agencies seeking to extract money for removal of flaking lead paint from older homes and apartments. It marked a huge victory for 10 California municipalities — including Los Angeles County, and the cities of San Francisco and San Diego — that will be able to draw on the fund for home inspections and repairs if the ruling holds up.

In the 114-page decision, Santa Clara Superior Court Judge James P. Kleinberg found three companies—Sherwin-Williams Co., NL Industries, Inc., and ConAgra Grocery Products Co.—guilty of creating a public nuisance by manufacturing and selling lead paint long after learning of its dangers. Kleinberg dismissed claims against two other defendants, ARCO and DuPont, finding there was insufficient evidence that they had sold lead paint for use in California homes.

The ruling drew a scathing response from Sherwin-Williams, NL and ConAgra. “The decision violates the federal and state constitutions,” said spokeswoman Bonnie J. Campbell in a prepared statement. “It rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint.” Campbell said the companies will ask Kleinberg to change his ruling and, if necessary, will file an appeal.

But Fidelma L. Fitzpatrick, an attorney with Motley Rice, which represented the cities and counties, said she was “thrilled for all the kids who are actually going to have a shot to have a safe home environment.”

“It’s a great lesson in responsibility and accountability,” Fitzpatrick said. “You make a mess, you have to clean it up.”

The ruling calls for the three companies to deposit $1.1 billion with the California Childhood Lead Poisoning Prevention Branch, part of the state health department, within 60 days of a final judgment. The 10 cities and counties will be able to draw on the fund to carry out lead inspections, removal and repairs. Each will have an allotment based on estimates of homes with potential lead hazards.

As reported by FairWarning, the lawsuit was filed 13 years ago, and has gone on so long that Kleinberg became the third judge to handle the case. It took five years just to resolve the side issue of whether it was proper for private contingency fee lawyers to represent public agencies (The final decision was yes.) The nonjury trial began July 15 and ended September 23.

Lead paint makers over the last 24 years had fended off about 50 other lawsuits by states and municipalities. Their one previous loss–in Rhode Island in 2006–was erased on appeal.

The industry’s success had come despite evidence that company officials knew decades ago that lead is hazardous but promoted lead paint as healthy. A Sherwin-Williams newsletter from 1900, for example, described lead as a “deadly cumulative poison.” Yet a 1924 ad by a company subsidiary boasted: “Cousin Susie says her health improved instantly” after her home was covered with lead paint.

Lead has been found in drinking water and in children’s jewelry, and has many industrial uses, but authorities say the biggest public health threat comes from lead-laden paint. Lead pigments were mixed into paint for decades, not merely for color, but also because they made the paint more durable and washable. The federal government outlawed lead paint for household use in 1978, however, due to its health hazards.

The paint is still found on the walls of old houses and apartments, where children sometimes ingest it when it chips off walls and turns into dust.

Recent research has found that even small amounts of the metal can be harmful, which prompted federal authorities this year to raise their estimate of the number of children with potentially dangerous levels of lead in their blood to 535,000. Young children with elevated lead levels in their blood are at risk of lower IQ, attention disorders and other health problems.

The defendants “certainly knew or should reasonably have known that exposure to lead at high levels, including exposure to lead paint, was fatal or at least detrimental to children’s health,” Kleinberg wrote in his decision. “That knowledge alone should have caused each Defendant to cease its promotion and sale of lead pigment and/or lead paint for home use. Instead, after becoming aware of the hazards associated with lead paint, they continued to sell it.”

He acknowledged that there are other sources of lead exposure, but said that ’’does not change the fact that lead paint is the primary source of lead poisoning for children’’ living in homes built prior to the lead paint ban.

Kleinberg also acknowledged that there have been significant reductions in blood lead levels in children, thanks to the lead paint ban and government programs. But he said that ‘’Existing programs at all government levels lack the resources to effectively deal with the problem…The Court is convinced there are thousands of California children…whose lives can be improved, if not saved, through a lead abatement plan.”

The court order states that the cities and counties will be entitled to receive up to the following amounts: Alameda County, $99 million; Los Angeles County, $605 million; Monterey County, $22 million; San Mateo County, $55 million; Santa Clara County, $99 million; City of San Diego, $77 million; City of San Francisco, $77 million; Solano County, $22 million; Ventura County, $44 million.

Photo: U.S. Environmental Protection Agency

FairWarning is a Los Angeles-based nonprofit news organization focused on public health and safety issues.


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